Victory in the air

“Belts and suspenders.” That’s a phrase that we lawyers use to describe how we write contracts and other documents repeating the same concepts multiple times. (“Repeating” and “multiple times”—you see, belts and suspenders.)

Sometimes the belts and suspenders are verbiage, but belts and suspenders have a role in legal drafting, because sometimes you need them to make sure everyone knows what the parties to a contract have agreed to.

Take the 1984 Agreement between Santa Monica and the Federal Aviation Administration (FAA) that settled litigation over Santa Monica Airport (SMO). The agreement stated clearly that the City could not close SMO until July 1, 2015. That was the “belt,” but the agreement didn’t say explicitly that on July 1, 2015, the City could close the airport (which would have been the “suspenders”). The belt held for 24 years, during which time both the City and the FAA knew (and acted accordingly) that the intent of the agreement was that the City could close SMO July 1, 2015. When, however, in 2008 the FAA decided to change its interpretation of the agreement, the missing suspenders gave the FAA cover to tell Santa Monica that though it couldn’t close SMO before July 1, 2015, it couldn’t do so afterwards either. Until last week, the City and the FAA were scheduled to go to trial in August to determine this issue.

When in 2003 Santa Monica negotiated an increase in a 1994 grant from the FAA to build a blast wall at SMO, the intent of the parties was not to have the 2003 money extend the term of the 1994 agreement. The 2003 amendment to the 1994 agreement had a belt (a clause saying that nothing in the amendment altered any other provisions of the 1994 agreement, which presumably included the term), but not suspenders (an explicit mention that the new money would not extend the term). The FAA later ruled that the new money extended the term of the 1994 agreement, and until last week the City had that ruling on appeal in the Ninth Circuit.

I bring up these examples of the perils of contract drafting because they provide the context for Santa Monica and the FAA’s most recent attempt to settle their differences over SMO: the settlement agreement they entered into last Saturday, which U.S. District Court Judge John F. Walter confirmed yesterday.

That context is twofold: (1), that because of the lack of suspenders in the 1984 and 2003 agreements, instead of having closed the airport in 2015 the City was involved until last week in a multi-front series of court cases, which were expanding whack-a-mole style, and which would not be resolved for years (and possibly not ever successfully); and (2), because in reviewing the new agreement, based on past disappointments one wants to be sure the agreement has both belts and, where needed, suspenders.

Taking up first Context 2, let’s look in the new agreement for the suspenders that were missing in 1984: an express acknowledgement that at the end of the term of the agreement, Santa Monica can close the airport. The new settlement agreement has the belt (it provides that the City’s remaining obligations to SMO continue only until Dec. 31, 2028), but also has this language (in the last paragraph of Section VI):

“[Unless the City agrees otherwise] the Parties agree that the City may, in its sole discretion at any time on or after January 1, 2029, cease to operate the Airport as an airport and may close the Airport to all aeronautical use forever [on 30 days’ notice].”

Ahh! An explicit statement that the City of Santa Monica can close SMO on a date certain! The missing suspenders from the 1984 Agreement! (There are community members who are concerned that a future City Council would not exercise its right to close SMO, but it’s a more plausible risk that a future council would keep the airport open if the current one hadn’t entered into the settlement agreement. A future council burdened with expensive and unending litigation, that the City might well be losing, would be more likely to cave in. Remember the “visioning process” that the council instigated after the City lost the Class C&D litigation with the FAA?)

Western end of soon-to-be shortened SMO runway

—Western end of soon-to-be shortened SMO runway

But wait, there’s more. Perhaps the most important provisions of the new settlement agreement are two provisions that are true suspenders. Why? Because they don’t add anything substantive to the agreement, but are crucial. Both relate to the FAA’s future actions.

The first is in Section I, where the City and the FAA settle all their claims, including claims under the Notice of Investigation and Cease and Desist order that the FAA served on the City last year. But the second paragraph of Section I goes beyond the mutual release. In true suspender fashion the paragraph requires the FAA to send to all the private parties bringing FAA administrative actions against Santa Monica (“Part 16 complaints”) a letter requesting that they withdraw their complaints. Although the FAA can’t require private parties to withdraw Part 16 complaints, the form of the letter attached to the settlement agreement includes language where the FAA tells the complainants that it will now be the terms of the settlement agreement that apply to their case, and that if the City is in compliance with the settlement agreement, the FAA will presume that the City “is meeting its obligations to the FAA.”

But the second provision about the FAA’s future action is even more important. This is Clause VIII.F, “Defense of this Agreement.” In it both parties agree to “vigorously and actively defend” the settlement and its terms “against any challenge by any individual or entity.” This means that if any aviation business contends that the settlement agreement is invalid, and that Santa Monica doesn’t have the right to close the airport (or exercise any of the other powers it has under the agreement), the FAA will take the City’s side.

There’s a lot of angst, even anger, from anti-airport activists about the settlement agreement. Most of it arises understandably from disappointment that the City’s absolute right to close the airport has been delayed from July 1, 2015 to Jan. 1, 2029. I feel the same way: I’ll be 76 then and I’m not happy to wait that long. But the true causes of the wait are the suspenders missing from the 1984 and 2003 agreements, and the resulting litigation context, not this agreement.

Additional fears arise from anxious reading of the agreement itself. For instance, many are worried about an “avigation easement” the City grants to the FAA preventing interference with aeronautical activities, but it’s clear from the agreement (although honestly there could be some suspenders making it doubly clear) that this easement only applies to the 1500 or so feet of the runway that are being decommissioned under the agreement. (From Clause II.C: “such land shall be subject to an avigation easement” (emphasis added).)

As I said in my post earlier in the week, the anti-airport, pro-park groups will need to continue to be active. The settlement agreement doesn’t end anything. Christian Fry of the Santa Monica Airport Association told a KPCC radio audience that he feels hopeful that the settlement agreement will result in the preservation of the airport, because by reducing its size, it will be more acceptable to residents.

So nothing is over. Expect another initiative, Measure D.2. La luta continua.

Yet it’s incomprehensible to me that there are anti-airport people who don’t realize that they are in a drastically improved situation from where they were a week ago. The City has neutralized the FAA! What can aviation businesses do now that they don’t have the big bad FAA backing them up? Where do they go when they can’t, realistically, file Part 16 complaints? (By the way, they’re not happy about it.)

Moreover, the City wasn’t going to be able to close the airport for years, or even reduce air traffic; now it’s as if the City won the Class C&D litigation, the City has a clear path to taking over FBO services, and true, it’s 12 years away, but we have a firm, outside date to close SMO and reason to believe that date can be accelerated.

Finally, Santa Monica faced years of litigation, litigation it might lose, or which a new council might abandon. Aggressive new challengers like JetSuiteX were popping up all over, but now the City has the advantage.

How can the settlement agreement not be a victory?

Thanks for reading.

The SMO settlement, eternal vigilance, and the beginning of the end

Procrastination can pay. For the past two weeks the top item on my to-do list has read, “Blog on SMO—read dox.” “Dox,” meaning the pleadings and briefs that have been piling up in multiple pending Santa Monica Airport (“SMO”) court cases.

“Pending”—scratch that. The settlement announced Saturday between the City of Santa Monica and the Federal Aviation Administration (FAA) resolves all litigation between the City and the FAA. As for litigation with third parties, such as aviation businesses at SMO, the FAA agreed to defend the settlement against any challenges.

Happy now that I didn’t waste time reading those dox.

The settlement has been widely reported, even making the front page of Sunday’s Los Angeles Times. There have been many articles in the local press, such as here (Santa Monica Lookout News) and here (Santa Monica Daily Press).

Most attention has focused on the City’s getting from the FAA an absolute date, Jan. 1, 2029, by which the City can close SMO. Other important points include that the runway will be shortened to 3,500 feet, eliminating most larger (“C and D” class) jets and preventing charter services like JetSuiteX, which was already selling tickets, from operating. The City also strengthened its authority over operations at the airport.

Speaking broadly, most observers outside of Santa Monica expressed astonishment that the City got the FAA to agree that the airport could close, while within Santa Monica a considerable number of anti-airport activists are shocked that the City agreed to operate the airport for 12 more years. In fact, three members of City Council voted against the settlement for precisely that reason.

So—is it a good deal?

Well, as one of those anti-airport activists—one who believed the City’s case against the FAA was good—my initial reaction was shock. I mean, Jan. 1, 2029? It’s also impossible not to recall that this is not the first time the FAA has agreed the City could close SMO. The first time was in 1984, when the FAA agreed the City only had to keep the airport open until July 1, 2015. As of 2000 the FAA was acknowledging that after that date SMO’s future would be a “local land use matter.”

But then in 2008, for reasons I’ll get to, the FAA changed its mind. The feds said the City couldn’t close the airport in 2015; that when the 1984 agreement expired the parties would return to where they were in 1984, fighting again over the same issues. It hurts to say it, but as a result of the SMO saga, I’ve become a little more understanding of the Sagebrush Rebellion.

So is the agreement, as Council Member Kevin McKeown said to the Daily Press, a case of “snatching defeat from the jaws of victory?”

I don’t believe so, and let me explain why.

First, would there have been a victory to snatch defeat from? As I’ve written often, the City had a good case that it had the right to close SMO, but that doesn’t mean it would win. The City was facing a party, the federal government, with unlimited resources, an agency, the FAA, dedicated to keeping airports open, and an incoming administration that favors business. (Not to mention a president whose most potent symbol was his private jet.) It’s significant that the law firms representing the City in its cases against the FAA advised the City to take the settlement. That was advice coming from lawyers who are naturally competitive, who like to win, and whom, incidentally, the City would have paid millions in fees if the cases continued to be litigated.

The great example of allowing enthusiasm to influence litigation was the fiasco of the City’s attempt to ban from SMO class C and D jets, an attempt that resulted in litigation that the City lost catastrophically. It felt good to ban the jets, and everyone was certain that the City was in the right. Not only, however, did the City lose and spend a lot of money doing so, but it was that case that prompted the FAA to change its interpretation of the 1984 Agreement. In years when the City should have been lying low, waiting until 2015, the C and D litigation kicked awake the sleeping dog of the FAA.

The only certainties about litigation are that it costs a lot and that no one knows how it will turn out. There is a reason that city councils discuss litigation in closed session. Decisions about legal tactics are not best made in response to public comment.

In evaluating the settlement, one also has to consider the context, namely the threat from JetSuiteX to begin the equivalent of commercial air service at SMO. If JetSuiteX succeeded, no one knows how that might have changed the political dynamic. Inevitably the aviation industry will try another initiative to keep SMO open; the vote might go differently than it did in 2014 with Measure D if voters not negatively affected by SMO are using and benefiting from it.

One is reminded of the axiom that the price of liberty is eternal vigilance. (Something we are reminded of these days whenever we look at a newspaper.) The fight to close SMO is not over because the fight to keep it open is not over. The aviation industry is just as angry about the settlement as anti-airport activists. They’re fired up and they’re not ready to go.

What will be most important in coming years is that the City use its enhanced powers over the airport—enhanced more because the FAA has decided to wash its hands of SMO than because of any specific right the City obtained under the settlement—to continue to reduce operations at SMO until no one has a financial interest in keeping it open.

For those of us who want to close the airport and build a park there, it’s going to be essential to remain politically involved. Council Member Tony Vazquez, as quoted in the Daily Press, made the valid point in explaining his “No” vote on the settlement that he would “hate to see a future council cut a deal with the FAA to continue to operate this airport any longer than 12 years,” but that’s a political reality settlement or no settlement. Meaning that even if there were no settlement, a future council could decide to cease litigating against the FAA. At least the settlement neutralizes the FAA.

The settlement is not the end of SMO. But, apologies to Winston Churchill, it should be the beginning of the end.

Thanks for reading.

Election analysis: LV lost big, bigger than you think

I haven’t written here for a while. It’s easy for a little hiatus to become a long vacation, especially over the holidays, and especially, if you write a column about local news, when national news is all consuming. Yet given a national election where the electorate divided along the spectrum from urban to rural, has it ever been more evident that “all politics is local?”

Here in Santa Monica the November results are still resonating. The sensitivities of the losers of the election over Measure LV are raw, as evidenced by Tricia Crane, one of the authors of LV. Last week Crane, who is active in both Residocracy and Northeast Neighbors, criticized City Manager Rick Cole for identifying in an email “longtime vocal critics of city government, particularly on the controversial issue of development” as “longtime vocal critics of city government, particularly on the controversial issue of development.”

As reported in the Lookout News, Crane objected to Cole’s characterization of longtime vocal critics as longtime vocal critics because, “As one who believes that democracy depends upon the free exchange of information and ideas, I find the label ‘longtime vocal critics’ to be troubling.” This coming from someone who personally and through her organization has never found it troubling to call anyone who supports building anything in Santa Monica to be, if a politician, corrupt and, if not a politician, a tool of developers.

But wait, there’s more. Crane then told the Lookout that, “Measure LV was supported by 45 percent of Santa Monica voters.” This, as anyone who has studied the election results knows, is false. While LV received the votes of 45% of those voters who voted on the measure, a trouncing in and of itself, about 17% of Santa Monica voters did not vote on LV. As a result, far fewer than 45% of Santa Monica voters supported LV.

The numbers? The total number of ballots cast in Santa Monica in November was 51,662. The number of Yes votes for LV was 19,786. Divide the latter by the former and you get 38.3%. Yes, I know, only the votes cast for or against a measure count when it comes to victory or defeat, but consider the rhetoric that we’ve heard from the anti-development crowd over the years, about how they are the residents, and about how unhappy the residents are. Given that that’s been their mantra, and that’s why they put LV on the ballot, isn’t it their burden to show that that is true? (If you want to review the numbers yourself, click here to access a PDF of all the Santa Monica November results.)

To repeat: only 38.3% of Santa Monica voters supported LV. (By the way, the figures for RIFT in 2008 were about the same.)

About now LV supporters will tell you LV lost because of the money developers spent against it, but go ask the aviation industry whether money wins elections in Santa Monica.

Getting back to the results, there were only two precincts in the city where LV won, but even in those precincts (which are on the eastern edge of the city between Wilshire and Montana) the Yes vote was less than 50% of the total number of ballots cast.

What about self-appointed neighborhood associations that supported LV? They didn’t reflect their residents. Two of the most anti-LV neighborhoods were North of Montana, the home of historically anti-development NOMA and the base for the Santa Monica Coalition for a Livable City (SMCLC), and the neighborhood between Wilshire and Montana west of 20th Street, the home of the WilMont Neighborhood Coalition. LV lost also in Sunset Park.

But the LV numbers tell only half the story. Any measure will get a certain number of votes just for being on the ballot, particularly one that promises to solve traffic congestion. Thirty-eight percent of Santa Monica voters voted for LV, but how many are truly up in arms about development?

We received an answer to that question in November, courtesy of Residocracy’s founder, spec-mansion developer Armen Melkonians. Melkonians ran for City Council on a hard anti-development platform. In past elections most serious candidates running on an anti-development platform (and all of them who have won election) have run with the endorsement of Santa Monicans for Renters Rights (SMRR). Melkonians, however, was an anti-development candidate who ran a strong campaign without a SMRR endorsement. Not only that, but (future write-in candidate) Phil Brock cleared the decks for Melkonians by not filing papers to run for council, and SMRR left an open seat by not endorsing incumbent Terry O’Day.

How did Melkonians do? He received 12,603 votes. Divide that number by 51,662, the total number of voters, and Melkonians’ tally was 24.4%. Meaning that not even a quarter of Santa Monica voters were angry enough about development to pay attention to local politics and then vote for the candidate who channeled that anger.

That doesn’t mean government shouldn’t continue to regulate development. Government regulates lots of businesses and industries. But we shouldn’t let the most extreme “vocal critics” set the agenda and control the debate.

These election results are, by the way, consistent with data from the City’s surveys over the years about the attitudes of residents. Most are happy to live in Santa Monica, and when asked (open-ended and unprompted) to name issues that concern them, only about a third mention traffic (and many fewer mention development).

Yet we have a political class that runs for cover whenever Residocracy or SMCLC say they speak for the residents.

Thanks for reading.

More on Santa Monica’s DCP: discretionary review and parking

As I’ve written in two recent posts, tomorrow night the Planning Commission will review the Santa Monica Downtown Community Plan (DCP). After staff makes revisions to the current draft, the City Council will review and presumably (one hopes) vote on the DCP next spring. There will be plenty more time to comment on the DCP, but there are still two issues I’d like to focus on now: discretionary review and parking.

Discretionary review. Since even before the start of the LUCE general plan updates in 2004, Santa Monica has become addicted to discretionary review of development projects. Since discretionary review complicates the approval of any project other than basic, by-right development, discretionary review encourages mediocrity. Not only that, but because by-right planning is typically car-based planning (because the basic standards evolved over the 20th Century to accommodate cars), by-right projects typically generate more driving than larger, but more thoughtfully designed, projects. (Meaning that more people drive to and from a basic retail box surrounded by parking than they do to and from a larger apartment building.)

Discretionary review, however, didn’t arise from bad intentions. The original purpose of discretionary review, aside from allowing more detailed design and environmental review of large projects, was to permit more ambitious projects, but to “tax” them by having them pay “community benefits” to reflect some of the value that developers received from community investment and compensate for costs that development might cause the community to bear.

Using discretionary review for these purposes channels the “Community Benefits Agreement” movement that social justice organizations like the Los Angeles Alliance for a New Economy (LAANE) have successfully promoted and implemented.

But for every yin there is a yang, and while the ultimate purpose of organizations like LAANE was to bring economic development to under-invested communities, anti-development elements in affluent communities latched onto discretionary review as a means for slowing, downsizing, or even stopping development by making development more costly and subject to delays, and riskier to the developer, who never could know for certain whether the project would be approved.

At which point discretionary review came to serve a third function, also negative. Policymakers and officials began to use discretionary review as a cover for not articulating definitive standards. They filled planning documents with rhetoric about, and pictures illustrating, general policies, but projects that would make those policies real were made subject, at ever-smaller thresholds, to discretionary review.

But then, cue the irony. In a healthy city like Santa Monica developers can make money if they can run the discretionary review gauntlet, and some developers here did so. Some projects were approved and some of them even got built. Yikes! The anti-development folks did a 180-degree turn, and suddenly what angered them most about the planning process was discretionary review. Now, they said, corrupt government officials were approving development agreements (DAs) without listening to the residents! (In fact, the officials had been too intimidated by the anti-development crowd to put real standards in their plans, and that’s why even routine projects required DAs.)

In Santa Monica this reversal, the attacks by anti-development groups on the development agreements they once championed, resulted in irrelevancy for the most important elements of the LUCE, namely, those dealing with the old industrial areas around Bergamot Station. It’s become clear that only by-right projects will proceed there, and any complicated projects, including for Bergamot Station itself, will be hopelessly tied up in “process.” Now the City is about to voluntarily do the same to downtown. The version of the DCP published in February was bad enough, requiring any development over 100,000 square feet to get a fully-discretionary DA, but now staff is suggesting that that threshold be reduced to 60,000 square feet.

So you wonder—what will it take for policymakers to realize that however they structure the process, with more review or less, the anti-development side is going to slam them if anything gets built? Why cater to them? They’ll get you coming or going. Why not try to develop zoning with definitive standards that equate to good projects (with good community benefits), so that 30 years from now the future residents of Santa Monica might look back and say that back then the wise were in charge (no doubt comparing them favorably to the policymakers of their day, who of course would be corrupt and stupid)?

Parking. Back in the ’60s, when Santa Monica was purportedly a sleepy beach town and/or leafy suburb run by the northern wing of the John Birch Society, the powers-that-be did something years ahead of their time. They created a shared parking district around what was then called the Third Street Mall. Property owners were assessed (taxed!) to build shared parking structures, and in turn were relieved of obligations to provide parking on site if they developed their properties.

Flash forward half a century, and in our “progressive” city, planners have come up with a downtown plan that is loaded with parking requirements, often calibrated for specific uses, meaning that a building’s future uses will be tied to its parking. This after the City has built shared parking at the main library and added more spaces in the parking district.

We’re told downtown is gridlocked. Then why require minimum amounts of parking? Readily available parking attracts drivers. Street parking downtown is not like in other neighborhoods, where residents need permit parking to make sure unrestricted spaces on the street are available to them. I don’t know of any streets downtown that don’t already have restrictions on street parking. Why should it be the City’s job to worry if future businesses or residents have enough parking? Let developers figure out if their tenants will need parking, and how much.

Furthermore, if parking is needed or desired, the City should not build and subsidize it. In fact, the City should open up zoning to allow private parties to build parking structures. If people need parking enough, they’ll pay enough to make it a business.

Santa Monica should expand the parking district to include all of downtown, eliminating parking requirements. Many cities around the country are doing this, as this map shows. Progressive Santa Monica is falling behind the curve.

Memo to Planning Commission: be bold. Ask staff to evaluate deleting all parking minimums in the DCP.

Thanks for reading.

Not-inspirational: more on the Downtown Community Plan

In my rant a few days ago I promised (threatened?) to come back with substantive analysis of the Downtown Community Plan (DCP), which the Planning Commission will review at its meeting Wednesday night. Which I’ll do, but give me a few more paragraphs about euphemisms.

The news on the euphemism front is not all bad. The DCP has eliminated a least one: “opportunity site.”

In the early days of researching for the downtown plan planners identified eight sites downtown that were big enough for large and/or complex developments, and called them “opportunity sites.” Thankfully, that’s gone, replaced by the honest descriptor, “large sites.”

Opportunity site is the kind of euphemism that inflames the suspicious natures of anti-development folks, while driving up the wall anyone who values straightforwardness. It’s a smiley face phrase that is more provocative of questions (“What opportunities?” or “Whose opportunities?”) than it is descriptive. So farewell, opportunity sites.

But the euphemism news is not all good. The DCP is not euphemism-free. My favorite is calling a seven-block area in the heart of downtown Santa Monica (DTSM) the “Neighborhood Village” district. (In earlier versions of the plan the area went by the plain and useful name “Wilshire Transition.”)

Village? Sure, there’s Greenwich Village. But otherwise, could we agree not to use the word “village” to describe any place that doesn’t have thatched roofs? There’s never going to be a village south of Wilshire Boulevard, between Fifth and Seventh Streets, and to imply that people living in apartment blocks, or working in offices, are living and working in a village is simultaneously a misuse of a good word and an insult to urban living.

Why am I going on about euphemisms? Because they are symptomatic of planning that won’t come to grips with the making of plans. Planning documents that from fear of reactions hedge every decision with layers of overly prescriptive details and, ultimately, further review. That are filled with desultory pages of community self-congratulation. Planning that lauds creativity (page after page extolling everything “creative” in DTSM from the banners on the Promenade to the “fresh local produce and seafood” in the farmers markets), but finds every way to shackle creativity when it comes to what the plan should be about, namely guiding positively the physical evolution of the city.

(By the way, is food that’s trucked in from, say, the hinterlands of San Diego or Kern County, local? Family-farm raised, seasonal, wholesome and delicious, yes, but local? This idea that Santa Monica has local farms is all apiece with denial that Santa Monica is in the middle of a metropolis. We’re on an ocean’s edge; so is Brooklyn.)

But enough about euphemisms. Let’s talk substance. Let’s talk building height.

I’m a big fan of, and I’ve written in favor of, the European, pre-elevator five-story city. As this picture of the Sixth Street block where my father lives shows, this kind of development can look and feel good in DTSM.

img_2921

Sixth Street north of Colorado Avenue

I opposed the towers Macerich originally wanted to build at Santa Monica Place, and I never supported the tall towers proposed at the Miramar. I also expressed skepticism about the other hotel towers proposed for downtown, without their ever getting to a point in the development process where I had to, or could, form a conclusive opinion.

So I’m not crazy for height for height’s sake.

But the limits on height in the DCP—for practical purposes 60 feet (five or six stories, depending on the height of the first floor)—go too far. (While in some places, in a “Tier 3” project, the DCP would permit heights as high as 84 feet (eight stories), and the plan is vague on what might happen on the four remaining “large sites,” realistically the default height limit is going to be 60 feet, because in most of downtown developers will rarely if ever attempt a Tier 3 project, which would require a development agreement.)

This 60-foot limit epitomizes nothing more than resignation, lack of imagination, and catering to irrational fears about losing downtown’s “charm and character,” as if DTSM’s character is based on the mostly nondescript buildings there rather than the people on the streets.

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Charm and character in DTSM

As I said, there’s nothing wrong with streets lined with five- and six-story buildings, and I certainly don’t like the modernist “tower in a park” alternative. But there is a middle range, territory in which creativity can mean a lot, and the DCP should allow or even encourage development in that range.

We’ve seen this recently with the development approved for 500 Broadway, which puts towers reaching 84 feet high on a low-rise pedestrian-oriented base. This project, designed by local architects Koning Eizenberg, shows that you can put the same amount of development in a somewhat taller building, and create better apartments, with more light and air for the tenants, at the same time that you bring more light and air to the streets below, and create excellent connections to the street.

KEARCH Brodway

A rendering of the 500 Broadway project.

There’s no reason not to have a base maximum height of 84 feet for all of downtown. (By the way, having a 84-foot limit doesn’t mean property owners and developers will take advantage of it. The Promenade has had an 84-foot limit for decades and nothing has been built to that height.)

And there’s also no reason not to allow even taller buildings, within reason, on appropriate sites. What’s “within reason?” It varies by site. A site like the Miramar, abutting a residential district, wouldn’t accommodate a building as tall as might be appropriate next to the freeway (such as the Wyndham Hotel site, or near the Expo terminus), but I don’t see any reason why the Miramar shouldn’t be able to replace its existing 12-story tower, and then build to 84 feet elsewhere (with the understanding that the floor-area-ratio isn’t going to be more than 3.0, so that any high-rise structures are going to be skinny, leaving more open space or more space for other buildings that are considerably shorter.

And who is really going to be bothered if the City allows a taller building at Fourth and Arizona? There are already tall buildings nearby. Or to replace the Wyndham Hotel hard by the freeway, or the parking lot at Second and Santa Monica?

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13-story building on Sixth, near Arizona Avenue

Planning should be inspirational. The DCP isn’t.

Thanks for reading.

Santa Monica’s long municipal nightmare

For a liberal like me, it’s hard not to be cranky after Donald Trump’s TKO (i.e., Electoral College) defeat of Hillary Clinton. True, my mood was elevated somewhat by the local KO of Measure LV, but it took another hit when I turned my attention to the political issue of the day in Santa Monica, namely the Downtown Community Plan (DCP) now under review by the Planning Commission.

The latest draft of the DCP, issued in February, is the product of what is looking to be a never-ending sequence of planning processes. These began a dozen years ago with the start of what was supposed to be a two-year process to revise the land use and circulation elements (LUCE) of the City’s general plan. The LUCE took six years of process before the City Council adopted it in 2010. Updating the Zoning Ordinance then took another five years (2010-15). During that time the City began the process to fill in a major gap left open in the LUCE, namely downtown Santa Monica (DTSM), and the draft DCP is what we now have for those efforts. After Planning Commission review, and further revision, the DCP is scheduled to come before City Council next spring.

Perhaps what’s most frightening about the DCP is that on its very first page of text, in an introductory section imagining a stroll in DTSM 20 years hence, the reverie ends with the statement that, “citizens in that far-off time [2036] are actively engaged in the fourth five year-revision of the original 2016 Downtown Community Plan.” (Note: the earliest the DCP will now be enacted is 2017.)

The fourth revision? As noted in the report on the DCP that planning staff prepared for the Planning Commission meeting Nov. 16 (after holding hearings that night, the Commission will again take up the DCP at its meeting next Wednesday, Dec. 7), the DCP has “been the subject of citywide discussion for the past five years.” And we’re supposed to update it every five years? Should we start the “citywide discussion” now for the 2022 update?

And note: it’s taken five years (and we’re not done yet) to plan for 20 years of development of only about 44 blocks, most of which already have buildings that are unlikely to be replaced for decades, or even this century.

Naturally, “citywide discussion,” what we’ve been having for five years, is a euphemism. For what (you ask)? Well, primarily for an out of control process that wastes everyone’s time. But that’s not the whole story. At the heart “citywide discussion” is a euphemism for elected officials not having the courage to let city staff plan, goddamn it, and then demand that staff give them something to vote on.

No, I don’t blame the hard-working and abused-by-the-public planners who drafted the DCP for the years-going-on-decades of “conversation.” I blame the electeds, and the succession of city managers since 2004, who themselves know plenty about planning, and could probably write the documents themselves, but who are afraid to make decisions without cover of meeting after meeting.

These meetings go nowhere, because they are designed to placate people who are opposed to change in any form, including the reasonable evolution of our downtown, people who will never be satisfied or persuaded by anything, let alone by more “conversation.” The City Council wants to placate the un-placatable, residents unhappy with change who don’t like downtowns and urban life in general, and don’t like our downtown in particular, what with its horrid tourists and young, happy, and “transient” apartment dwellers.

Further, the data and input that come from repeated meetings, including the eight months of outreach staff conducted since publishing the draft DCP in February, are by their nature going to be inconclusive. The more sequences of meetings there are, the more layers of iteration, the more inconclusive the data are going to be. People have different opinions. Planners must listen carefully to the public because the public has real world knowledge and ideas, but you can’t get plans from the public because, for one reason, members of the public don’t agree with each other. (And for now I’ll only mention the fact that staff didn’t bother talking to any of the workers at downtown hotels, people who, as opposed to many residents, are downtown everyday, who know the place and use the transit, and who might be able to use housing that could be built there.)

Memo to council members, to the Planning Commission, and to the City Manager: those residents you are trying to persuade to be happy with change have told you time and again that they won’t be persuaded. They will never be happy with any change that they imagine will add to traffic or that won’t restore the sunny days of their youth. Why don’t you cut the farce about pleasing them and get back to planning and deciding? At what point will you stop trying to make people love and respect you who at best look down their noses at you (Santa Monica Coalition for a Livable City) or at worst despise you (Residocracy)?

Memo to council members: given (i) that anti-development targets Pam O’Connor and Terry O’Day both won reelection without SMRR endorsements, (ii) that when all the votes are counted no-growther Armen Melkonians will likely have received votes from fewer than 25% of the number of Santa Monicans who voted this year, (iii) that yet again no candidate running on an anti-development platform has won election without a SMRR endorsement, and (iv) that RIFT and LV both lost decisively, is it too much to ask you to stand up and end our long municipal nightmare of perpetual planning? I.e., make some decisions instead of calling for more process?

Memo to council members and planning commissioners: If you believe that the charm and character of downtown will be destroyed if you allow buildings taller than 60 feet, fine. Vote that way. But can you finally vote? I.e., make decisions? Without fearing that the people will withdraw their love for you?

Finally, delay has substantive impact. The circumstances, economic, political, and otherwise, in which the LUCE process began in 2004 were quite different in 2010 when the LUCE was adopted, so much so that the LUCE was an artifact the night the council passed it, largely doomed not to be implemented.

Did I say I’m cranky?

Next time I’ll do some substantive analysis of the DCP. In the meantime, thanks for reading.

The local vote: preliminary post-mortem

Shell-shocked after the presidential vote, I’ve been slow putting my thoughts together on the local election. In fact, when analyzing local elections it’s a good idea to wait a few weeks until the final results are certified. The results rarely change (except occasionally in a close City Council race, as Ted Winterer will ruefully acknowledge), but until all the absentee and provisional ballots are counted, one can’t speak about important matters like total turnout, or how different neighborhoods voted.

But in the meantime I can make a few points.

The defeat of Measure LV. Again, the final numbers aren’t in, but it looks like LV, the “Land Use Voter Empowerment Initiative,” performed the same as its predecessor anti-development initiative, the “Residents Initiative to Fight Traffic (RIFT) did in 2008. RIFT got 44% of the votes cast on it, and right now LV is also at 44%. RIFT got about 36% of all votes cast—we won’t know that number for LV until we have the final returns.

While there are Santa Monicans who want no more development, and many residents who will vote yes on anything that promises to do something about traffic (and in a certain sense who can blame them?), there is a solid majority that does not want to plan by ballot box and/or will not arbitrarily restrict future development based on arguments about traffic or community character.

The vote was consistent not only with RIFT, but also with past votes to allow the development of affordable housing (in 1999) and to adopt the 1994 Civic Center plan. The last time a measure aimed against development passed in Santa Monica was the 1990 vote on Michael McCarty’s beach hotel. In the meantime, despite opposition from some elements of the anti-development side, Santa Monica voters have passed many bond issues and taxes, including this year’s Measures GS and V.

They want to manage change intelligently, but most Santa Monicans are not afraid of it.

The LV side has already blamed their loss on the big money spent against LV. But the 2014 vote on the competing airport measures showed that massive expenditures do not persuade Santa Monica voters. The aviation industry spent almost a million dollars, outspending the anti-airport, pro-park campaign by about six-to-one, but still lost overwhelmingly.

Santa Monica voters are sophisticated. Once they have enough information to make up their minds (which takes a campaign because most residents don’t pay attention to local politics), they make up those minds. The anti-development side can’t have it both ways – they can’t claim repeatedly and vehemently that only they represent the residents, and then consistently lose elections. Not, in any case, without implying that residents are ignorant dupes.

Perhaps Residocracy and the Santa Monica Coalition for a Livable City will take these results to heart and start describing themselves as speaking for “many” residents, which is powerful enough. I doubt it. Speaking for others is a hard habit to break. One might also hope that they would stop describing people who disagree with them as corrupt, but what was startling in this campaign was how viciously the LV’ers attacked opponents who had long been slow(er)-growth standard-bearers. All of a sudden stalwart controllers of growth like Kevin McKeown and Ted Winterer were the tools of developers, on the take. I tip my hat to them for taking the abuse; I hope that they are aware that they were only getting in the back what opponents of the no-change mindset get thrown in their faces everyday.

As for the City Council election, it was no surprise that the four incumbents won easily. The shocker was that Terry O’Day came in first. I assumed that since he was the only incumbent running without the endorsement of Santa Monicans for Renters Rights (SMRR), he would be the trailing winner. In my recollection, neither Bob Holbrook nor Herb Katz, the council’s longtime non-SMRR members, ever finished first. O’Day also voted for the Hines project. He came in first nonetheless.

This year SMRR didn’t endorse O’Day and two years ago SMRR didn’t endorse Pam O’Connor. Both were elected. But for elevating the development issue above all other issues affecting Santa Monica, SMRR would now be in a situation where all seven members of the council owed their election to SMRR, or believed they did. Instead, now SMRR is back to where it was when Holbrook and Katz were the two independents.

I’ll have more when all the votes are counted.

Thanks for reading.